II v. Robin E. Conway (2013)

MEMORANDUM OF DECISION

This dissolution of marriage action was commenced by the plaintiff, John J. Conway II, against the defendant, Robin B. Conway, by summons and complaint dated April 5, 2013, and made returnable to this court on May 14, 2013.   The case was tried before the court on October 1, 2013.   Both parties represented themselves.   Prior to trial, the parties largely resolved by agreement all disputed issues with the exception of alimony and certain IRS tax matters.   The court heard testimony from both parties.

Upon careful consideration of the evidence presented and the pertinent statutory law, in particular General Statutes §§ 46b–82 (alimony), 46b–66 (agreements) and 46b–81 (assignment of the marital estate), and the relevant case law, and having observed the demeanor of the parties at time of trial, the court makes the following findings of fact and conclusions of law.

I

Jurisdiction

The plaintiff married the defendant on May 18, 2006, in Myrtle Beach, South Carolina.   The plaintiff continuously resided in the State of Connecticut for at least one year before this action was commenced.   All statutory stays have expired.   The court has jurisdiction over this matter.

II

Marital and Family History

The plaintiff and the defendant have been married for seven years.   This is the second marriage for both parties.   The plaintiff's first marriage ended upon the death of his wife.   The defendant's first marriage ended in divorce.   There are no minor children issue of the parties' marriage.   The defendant is not currently pregnant.   The parties did not receive state assistance during the course of their marriage.

The parties resided at 87 Edgar Street, East Haven, Connecticut until they separated on November 3, 2012, when the plaintiff told the defendant to move out.   The plaintiff owned the East Haven property prior to his marriage to the defendant.   Title to the property is held in his name only.   The plaintiff is solely liable for payment of the mortgage indebtedness;  the defendant is not an obligor on the mortgage note.   There is approximately $67,000 in equity in the East Haven property.   Upon the parties' separation, the defendant moved back to Virginia where she lived prior to her marriage to the plaintiff.   The defendant presently resides in Martinsville, Virginia in her mother's home which the defendant co-owns with her niece.   The Martinsville property is valued at $29,800.   The defendant's equity interest in the property is $15,000.

The plaintiff is 46 years old and in good health.   He holds a high school degree and a certificate in electro-mechanical technology.   He has been employed full time (44 hours per week) as a facility mechanic for Connecticut Distributors since April 2006.   He also holds a part-time job on weekends as a tow truck driver with Fireline Towing in East Haven.   The plaintiff grosses $49,712 a year from his full-time employment and $3,900 a year from his part-time employment, aggregating $53,612 gross.   His annual net income is $36,537.28 (equating to a net weekly income of $703).   Both the plaintiff and the defendant are insured through the plaintiff's employer.

The defendant is 55 years old and in excellent health.   She is a high school graduate and holds an Associate's Degree.   She is presently unemployed.   Prior to and during the parties' marriage, the defendant held various full-time and part-time positions in the areas of medical transcription, seasonal retail, and insurance services.   In 2006 as a full-time employee for a medical transcription service, the defendant netted approximately $26,000 for the year.   Thereafter, from the period 2008 forward, she earned on average $10 to $12 per hour for a 40–hour work week and an additional $10 per hour for a 15–20 hour work week when part-time work was available.   During the period May 2012 to November 2012, the defendant netted approximately $400 per week.   Upon her return to Virginia in November 2012 the defendant was unable to find employment.   She then moved to South Carolina where she was hired for a seasonal position working 42 to 55 hour per week, earning $10 an hour plus overtime, and netting approximately $600 per week.   The seasonal position terminated on September 2, 2013, and the defendant moved back to Virginia.   At the time of trial, the defendant was unemployed but actively seeking a job.   She had three interviews scheduled for the week after the trial.   In 2012, the defendant's gross income was $6,000.

The plaintiff claims that the marriage broke down for several reasons:  the parties did not see eye to eye, they drifted apart over time, the plaintiff began doing things on his own, and the defendant mismanaged the parties' finances.   The defendant claims that the marriage broke down as a result of the plaintiff's infidelities.   The plaintiff concedes that he is now living with another woman but denies that he was having an extramarital affair while he and the defendant resided together.   The defendant denies that she mismanaged the family finances, claiming that the plaintiff spent “freely and on a whim” for his own activities.   Both parties agree that the marriage has broken down irretrievably and that there is no hope of reconciliation.   The court finds that the plaintiff bears greater responsibility than the defendant for the breakdown of the parties' seven-year marriage.

In 2013, while the parties were living separate and apart, the plaintiff electronically filed a 2012 joint tax return (Married Filing Jointly) for the parties.   The plaintiff did not have the defendant's permission to file a joint tax return on her behalf.   As a result of the plaintiff's 2012 joint tax filing, the plaintiff received a $2,200 tax refund which he used to pay back taxes on his automobiles.   Also in 2013, the defendant filed a 2012 separate tax return (Married Filing Separately) from which she anticipated a $178.00 tax refund.   However, because the plaintiff first filed a joint tax return, the defendant's separate tax filing has been placed in “pending status” by the IRS and she has not received a tax refund for 2012.

The plaintiff assumed liability for all joint debt incurred by the parties so there is no joint debt to be divided.   Neither party makes any claim to the vehicles, bank accounts and/or deferred compensation plans listed as assets on the other's financial affidavit.   Likewise, neither party makes any claim to the real or personal property owned by the other, with the exception of a diamond necklace the parties agreed the defendant may retrieve from the East Haven property.

The plaintiff seeks dissolution of the marriage.   The court finds that the allegations of the complaint are proven and true.   The parties' marriage has broken down irretrievably and there is no hope of reconciliation.

III

Dissolution Agreement

The parties entered into a Dissolution Agreement with respect to the division of certain assets and debts.   The court finds that the Dissolution Agreement was knowingly and voluntarily made by the parties and that it is fair and equitable under the circumstances.   The Dissolution Agreement is approved and incorporated herein by reference;  provided, however, that in the event any provision of the Dissolution Agreement is inconsistent with the Orders entered herein, the Orders entered herein shall govern.

IV

Alimony

In determining whether to award alimony and the duration and amount of the award, the court “shall consider the length of the marriage, the causes for the ․ dissolution of the marriage ․ the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b–81.”  Gen.Stat. § 46b–82.   “There is no absolute right to alimony ․ Awards of alimony incident to a marital dissolution rest in the sound discretion of the trial court.”   (Citations omitted.)  Weinstein v. Weinstein, 18 Conn.App. 622, 637, 561 A.2d 443 (1989).

At trial, the plaintiff proposed that he pay no alimony to the defendant.   The defendant seeks an award of alimony in the amount of $200 per week for a period of five years so that she can go back to school to get vocational training or a Bachelor's Degree.

As noted above, the court finds that the plaintiff is more culpable than the defendant for the irretrievable breakdown of the parties' marriage.   The defendant is nine years older than the plaintiff, but both are of comparable health and station.   The plaintiff has been successful in maintaining a full-time and part-time job.   The defendant has been unable to find steady employment since the parties' separation;  however, she is actively seeking employment and was optimistic at time of trial that she would soon be employed.   Having considered all of the statutory criteria cited above, the court finds that an award of periodic alimony to the defendant is appropriate.

V

Orders1. Dissolution

The marriage of the parties is dissolved on the ground of irretrievable breakdown.   The parties are declared single and unmarried.

2. Alimony

a. No alimony is awarded to the plaintiff.

b. The plaintiff shall pay alimony to the defendant in the amount of $150.00 per week for a period of two (2) years from the date of judgment.   Except as provided below, alimony shall be non-modifiable as to term but modifiable as to amount.   The defendant shall have the ability to earn up to $25,000 gross taxable income per year as a safe harbor before the plaintiff shall have the right to seek modification of the alimony award based upon a substantial change in circumstances arising from the defendant's income.   Alimony shall terminate upon the earlier of two (2) years from the date of judgment, the death of either party, or remarriage of the defendant.   Alimony is modifiable as to both term and amount in the event of the defendant's cohabitation as provided in General Statutes § 46b–86(b).

c. For so long as the plaintiff has an obligation to pay alimony to the defendant, the parties shall exchange, on an annual basis, W–2s, 1099s and any other evidence of earned income within two (2) weeks of receipt of such documentation.

3. Health Care Insurance

a. Each party shall be responsible for the procurement and cost of his/her own health insurance.

b. The plaintiff shall cooperate with the defendant in obtaining COBRA medical insurance for the defendant from his employer.   The defendant shall be responsible for paying the costs of COBRA medical insurance coverage for as long as she is legally eligible for such coverage.   If the defendant is able to obtain insurance through her employment or other source at no cost or a lower cost to her, she shall obtain the same, as long as that insurance covers any then pre-existing medical conditions.

4. Income Withholding Order

Alimony shall be secured through an immediate income withholding order.   The plaintiff has an absolute responsibility to make all alimony payments directly to the defendant until the income withholding order takes effect.   Until the full weekly amount due the defendant is deducted from the plaintiff's paycheck, the plaintiff must pay the amount not deducted to the defendant directly.   The plaintiff shall sign and return to the court within thirty (30) days from the date hereof an Advisement of Rights (JD–FM–71).

5. Real Property

The plaintiff shall retain all right, title and interest in and to the East Haven, Connecticut property and shall be solely liable for all costs associated therewith including the taxes, insurance, and utilities and shall indemnify and hold harmless the defendant from any and all liability therefrom.   The defendant shall retain all right, title and interest in and to the Martinsville, Virginia property and shall be solely liable for all costs associated therewith including the taxes, insurance, and utilities and shall indemnify and hold harmless the plaintiff from any and all liability therefrom.

6. Motor Vehicles, Personal Property, Bank Accounts and Deferred Compensation Plans

To the extent not otherwise provided in the Dissolution Agreement and the Orders herein, each party shall be awarded, free and clear of any claim by the other, the assets listed on the parties' respective financial affidavits.

7. IRS Tax Liability

The plaintiff shall indemnify and hold the defendant harmless from any loss or liability arising from his filing of a 2012 joint tax return for the parties.   In addition, the plaintiff shall pay to the defendant the sum of $178.00 within thirty (30) days of the date hereof.

8. Restoration of Name

The defendant's name is restored to her birth name of Robin Elizabeth Eaton.

Morgan, J.

Morgan, Lisa K., J.